Monday, April 11, 2016

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: What Does Legal Custody Really Mean?

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received?

See how we addressed each Assumption:

Assumption 1 – Access to School & Medical Records

Assumption 2 – Consent to Medical Treatment

Assumption 3 – The Shared Custody “Veto Power”

Assumption 4 – Presumption of Shared Legal Custody

What do Massachusetts Appellate Court Decisions Really say about Legal Custody? 

The purpose of this blog series was to explore the definition of legal custody under Massachusetts law, which is virtually non-existent. Massachusetts appellate courts have addressed legal custody in a related but different context, however. There have been numerous appellate decisions in Massachusetts detailing when parents should not have shared legal custody. See Smith v. McDonald, 458 Mass. 540, 554 (2012) (shared legal custody appropriate “only if the parties demonstrate an ability and desire to cooperate amicably”); Carr v. Carr, 44 Mass. App. Ct. 924 (1998), (shared legal custody inappropriate where parents’ relationship was “dysfunctional, virtually nonexistent, and one of continuous conflict”); Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981) (“in order for joint custody or shared custody to work, both parents must be able mutually ‘to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children.’”).

Granted, these cases explain when parents should or should not share legal custody. If parents can communicate about their children, then legal custody is appropriate. If parents cannot effectively communicate, then one parent (often, but not always the custodial parent) should have sole legal custody. What these cases don't explain is what it means for a parent to have legal custody or not have legal custody.

What specific rights does a parent with legal custody really have? What specific limitations does a parent without legal custody really face? What does “participation” in major decisions really entail? What constitutes a “major decision” at all?

What Does Legal Custody Really Mean?

Clearly, the answer to the question above is anything but clear. We can say a few things with confidence, however. Parents who share legal custody have a vague duty to consult with one another regarding very important issues affecting their children. At a minimum, parents with shared legal custody appear to have a duty to notify the other parents of major issues involving a child’s academic, medical or religious life. Arguably, a parent with shared legal custody has a duty to at least consider the opinions of the other parent when making major decisions, although it is nearly impossible to measure a parent’s sincerity in this regard.

There is no question that the primary factor that courts and judges focus on when determining legal custody is communication. Courts look into the parents’ ability (or inability) to communicate to determine whether parties should have shared legal custody. And once shared legal custody is awarded, a judge could theoretically review a party's conduct to determine whether he or she failed to communicate, provide notice, and/or seek input from the other parent when making a major life decision on behalf of a child.

On a personal note, as recently as last year, I had a judge tell me that litigating legal custody was itself a sign that the parties lacked the ability communicate with each other about major decisions. Clearly, if one joint custodian undertakes a campaign to exclude the other from making major decisions in a child's life, a contempt judgment may conceivably be warranted. The problem is that such a contempt judgment has never been reviewed by a Massachusetts appellate court that could define the rights - and limitations - embodied by legal custody.

Examining the law of legal custody as a whole, one gets the impression that legal custody is less a “right” than a badge the courts give and take away from parents for demonstrating good co-parenting skills. Parents who demonstrate the ability to communicate with each other about their children receive the “gold star” of shared legal custody that signifies the parent’s willingness to meet the minimum requirements for co-parenting in Massachusetts. Parents who lack the ability to communicate with another parent about the children are deprived of the badge. In short, legal custody may be best understood as a tool that judges use to reward or punish parents for their co-parenting behavior that does not require the judge to change the one order that really matters: parenting time.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

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